165 Augusta Street, Inc. v. Collins

Heher, J.,

dissenting. There is no contention here that the regulation itself is unreasonable and arbitrary. The validity of the local legislative classification is not challenged. The board of adjustment, in the purported exercise of the power conferred by R. S. 40:55-39c, as amended in 1948 and 1949 (L. 1948, c. 305, p. 1223; L. 1949, c. 242, p. 779), found that the claimed variance “is necessary by reason of the peculiar and exceptional practical difficulties to (sic) an exceptional and undue hardship upon the owner, and that the granting of this variance is without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.” This is a bare conclusion without any supporting specific factual finding; and I deem it to be utterly without basis *266 in the proofs, assessed in the light of the statutory considerations controlling the allowance of variances from the terms of the regulation.

It is fundamental in the statute that the return to the proceedings exhibit, in the words of Cardoza, C. J., “the hardship and its occasion * * * fully and at large.” People, ex rel. Fordham Manor Reformed Church v. Walsh, 244 N. Y. 280 , 155 N. E. 575 (Ct. Apps. 1927). Such authority “is designed to be sparingly exercised. It is only in rare instances and under exceptional circumstances that relaxation of the general restrictions established by the statute ought to be permitted. The power granted is only for the relief of specific instances, peculiar in their nature.” Norcross v. Board of Appeals, 255 Mass. 177 , 150 N. E. 887 (Sup. Jud. Ct. 1926): To the same effect: De Felice v. Zoning Board of Appeals of Town of East Haven, 130 Conn. 156 , 32 A. 2d 635 , 147 A. L. R. 161 (Sup. Ct. Err. 1943). This is necessarily so, for unless the general rule be thus modified in the particular case only for the accommodation of fundamental common and individual rights in the service of the statutory policy, there will inevitably ensue the odious special privileges which will sound the death knell of zoning. Brandon v. Montclair, 124 N. J. L. 135 (Sup. Ct. 1940), affirmed 125 N. J. L. 367 (E. & A. 1940). The exceptional difficulty and hardship must inhere in the particular parcel for which the variance is claimed. Unless the subject property be uniquely circumstanced, in contradistinction to the general conditions in the area signifying what in substance is an arbitrary use of the zoning power, a variance would constitute an excess of jurisdiction. Arverne Bay Construction Co. v. Thatcher, 278 N. Y. 222 , 15 N. E. 2d 587 , 117 A. L. R. 1110 (Ct. Apps. 1938); Real Properties v. Board of Appeal of Boston, 319 Mass. 180 , 65 N. E. 2d 199 , 168 A. L. R. 8 (Sup. Jud. Ct. 1946). The board of adjustment is a discretionary governmental administrative agency that in this regard exercises a function gwisi-judicial in essence, con- *267 tamed by a certain and definite standard and rule of action for the execution of the statutory policy.

The essence of zoning is territorial division according to the character of the lands and structures and their peculiar suitability for particular uses, and uniformity of use within the division. Collins v. Board of Adjustment of Margate City, 3 N. J. 200 (1949); Potts v. Board of Adjustment of Princeton, 133 N. J. L. 230 (Sup. Ct. 1945). The constitutional power is couched in such terms. Constitution of 1947, article IV, section VI, paragraph 2. And the legislative grant of authority has the same delineation. R. S. 40:55-30, as- amended by L. 1948, c. 305, p. 1221. The governing body is empowered to divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the statutory policy, and to regulate and restrict the construction and use of buildings or other structures and lands within such districts, provided that “All such regulations shall be uniform for each class or kind of buildings or other structures or uses of land throughout each district, but the regulations in one district may differ from those in other districts.” R. S. 40:55-31, as amended by L. 1948, c. 305, p. 1221. And such regulations shall be in accordance with a “comprehensive plan and designed” to serve the public welfare in one or more of the enumerated particulars, and “shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.” R. S. 40:55-32. The amendment of the regulations is a legislative function reserved to the local lawmaking body. R. S. 40:55-35, as amended by L. 1948, c. 305, p. 1222. Indeed, this principle may well have a constitutional basis, for arbitrary discrimination in the purported exercise of the power would seem to violate the substance of due process and to constitute a denial of the equal protection of the laws. Brandon v. Montclair, cited supra. But there is no occasion to pursue the inquiry here.

*268 The subject plot is situate at the corner of Augusta Street and Lyons Avenue in Irvington. It has a frontage of 100 feet on Augusta Street and 149.32 feet on Lyons Avenue, and is known as 681-691 Lyons Avenue. The land is bisected by the line dividing a “B” Residence zone from an “E” Business zone, running, at a right angle from Lyons Avenue. The block bounded on the south by Lyon's Avenue, on the west by Ball Street, on the north by Stratford Place, and on the east by Augusta Street is situate in the “B” Residence zone, with the exception of a plot fronting approximately 150 feet on Lyons Avenue zoned for business to a depth of about 100 feet. The particular plot is-in the “B’■ Residence zone for a distance of 70 feet from the corner of Augusta Street and Lyons Avenue; the remainder, fronting about 79 feet on Lyons Avenue, is in the business zone. The area of the land situate in the business zone is 7,900 square feet, much more than sufficient to accommodate the proposed service station. The evidence shows that the service station would comprise about 1,500 square feet. The portion of the land located in the residence zone is adjacent to one of the finest residential areas in Irvington. Irvington Park is situate directly across Augusta Street. There is a 40-family apartment house immediately to the north. The opposite side of Lyons Avenue extending easterly for about 1,200 feet is located in a “D” Residence zone. There can be no doubt that by reason of the proximity of the park, Augusta Street is peculiarly suitable for residence uses; indeed, that is its highest and best use. The landowner adduced evidence that residence use is not feasible because of high cost of the land. The remainder of the plot located in the business zone is ample for the proposed service station; but obviously . the corner lot is more desirable and therefore more profitable for that use. This offers no ground for a variance to avoid an arbitrary and capricious interference with the basic right of private property. Protomastro v. Board of Adjustment of City of Hoboken, 3 N. J. 494 (1950). There is no showing of the peculiar and exceptional practical difficulties or the *269 exceptional and undue hardship which under section 39(c), cited supra, would entitle the landowner to a variance constituting the first invasion of business in this exclusively residential section of Augusta Street. We have here a variant use that will alter the essential character of the area and tend to subvert the regulation itself — -an unequal application of the zone rule in violation of common and individual right. The hoard has usurped the legislative function. It would seem to be fundamental that a variance under the cited section, by its very nature, is permissible only for the most compelling reasons consistent with the spirit and policy of the statute and the local ordinance made pursuant to the zoning power thereby granted: only thus can the line of demarcation between the legislative and administrative functions be maintained and the integrity of zoning secured. I concur in the conclusions of Judge Colie, who had the benefit also of a personal view of the locus.

I would affirm the judgment.

For reversal — Chief Justice Yanderbilt, and Justices Oliphant. Wacheneeld and Burling — 4.

For affirmance — Justice Heher — -1.